Ishak v. Gonzales, 03-2736.

Citation422 F.3d 22
Decision Date06 September 2005
Docket NumberNo. 04-1138.,No. 03-2736.,03-2736.,04-1138.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
PartiesTito Ibrahim Barsoum ISHAK, Petitioner, v. Alberto R. GONZALES<SMALL><SUP>*</SUP></SMALL>, Attorney General, Respondent. Tito Ibrahim Barsoum Ishak, Petitioner, Appellant, v. Alberto R. Gonzales, Attorney General, et al., Respondents, Appellees.

Anthony Drago, Jr., for petitioner, appellant.

Ernesto H. Molina, Jr., Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Peter D. Keisler, Assistant Attorney General, Civil Division, and David V. Bernal, Assistant Director, were on brief for respondent, appellee.

Before BOUDIN, Chief Judge, CAMPBELL, Senior Circuit Judge, and GERTNER**, District Judge.

LEVIN H. CAMPBELL, Senior Circuit Judge.

When we heard argument, two matters were consolidated before us: (1) Ishak's petition for review of the Board of Immigration Appeals' (BIA) denial of his motion to reconsider its decision refusing him asylum and ordering his removal; and (2) Ishak's appeal from the district court's dismissal, for lack of subject matter jurisdiction, of the habeas corpus petition he had brought to contest his deportation.

Before we had decided, the Real ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005) ("Real ID Act"), went into effect. This gave new and dispositive support to the district court's holding that it lacked jurisdiction over Ishak's habeas claims. It also, however, transferred these same claims to our court, in the form of a new, statutorily-created petition for review. Because of the relevance of the Real ID Act, we invited the parties to submit supplemental briefing containing their views on its effects here. We now affirm the district court's dismissal of the habeas corpus petition for lack of jurisdiction, and we dismiss on the merits both Ishak's original petition for review and the new petition for review established by operation of the Real ID Act relative to Ishak's habeas claims in the district court.

I. Background

Ishak, a native and citizen of Egypt, entered the United States on June 23, 1999 as a tourist. He overstayed his visa and applied for asylum on July 21, 2000, claiming that he suffered past persecution on account of his religion, Coptic Orthodox Christianity, his membership in a particular social group, and his political opinion. Ishak also applied for withholding of removal, voluntary departure, and relief under the Convention Against Torture.

An asylum officer of the Immigration and Naturalization Service (INS)1 conducted an interview of Ishak and determined that he was ineligible for asylum. The asylum officer outlined her assessment in a memorandum in which she recommended referral to an immigration judge (IJ). The INS denied Ishak's asylum application and referred the case to the immigration court for further proceedings.

On February 27, 2002, the IJ held a hearing at which Ishak testified. The IJ rendered an oral decision, denying Ishak's applications for asylum, withholding of removal, and relief under the Convention Against Torture, and granting voluntary departure in lieu of removal. In his oral decision, the IJ reviewed various parts of the record, including the asylum officer's assessment memorandum, which he recited verbatim. The IJ further stated that he had "observed the demeanor of [Ishak] during the time he [had] testified" and found his "testimony to be less than candid, his answers to be rambling, his answers not responsive to the questions asked, and his testimony not credible concerning the reasons for his leaving Egypt and not wanting to return to Egypt."

Ishak filed a timely appeal with the BIA. He argued that he had provided sufficient evidence to establish his eligibility for asylum. In the alternative, he contended that he had been denied a fair hearing because of the lack of competent translation, the inability to cross-examine the asylum officer after the IJ's reliance on her findings, and the IJ's antagonistic questioning on cross-examination.

On August 27, 2003, the BIA dismissed the appeal. The BIA found that the IJ's adverse credibility finding was supported by the record. Specifically, the BIA noted that it "agree[d] with the [IJ's] characterization that [Ishak] provided unresponsive answers and was evasive . . . when the [IJ] asked questions to clarify implausibilities and inconsistencies in his testimony." The BIA also found that "[Ishak's] testimony regarding his arrest and false accusation [was] too implausible and [had] too many unresolved inconsistencies to establish his eligibility for asylum." Moreover, as to Ishak's claim that he had no opportunity to cross-examine the asylum officer after the IJ had relied on her findings, the BIA found that the IJ had "merely agreed with the asylum officer's credibility finding, but [had] made his own credibility finding based on his own observations at the merits hearing."

Ishak did not file with this court a petition for direct review of the BIA's decision disposing of his appeal. See 8 U.S.C. § 1252(a)(1), (b) (2000). On September 26, 2003, Ishak instead filed a timely motion with the BIA to reconsider its August 27, 2003 decision dismissing his appeal. Ishak repeated the arguments he had made in his appeal, and asserted that the BIA had made errors of fact and law in conflict with this court's June 2003 decision of El Moraghy v. Ashcroft, 331 F.3d 195 (1st Cir.2003), issued after he had filed his appeal but before the BIA entered its own decision dismissing the appeal. Ishak claimed that, in light of El Moraghy, the IJ had misused the country condition reports as a test for corroboration. See id. at 204.

On December 3, 2003, the BIA rejected Ishak's motion to reconsider. The BIA stated that it had considered the same arguments made by Ishak in the motion to reconsider before rendering an initial decision in his case. The BIA "decline[d] to revisit" those arguments and denied the motion.

On December 24, 2003, Ishak filed with this court a timely petition for direct review of the BIA's denial of reconsideration. See 8 U.S.C. § 1252(b) (2000). In his petition for review, Ishak requested a stay of removal, which this court denied.

On January 20, 2004, while the above petition for review of the BIA's denial of reconsideration was pending in this court, Ishak filed in the United States District Court for the District of Massachusetts a petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2241, alleging that the immigration authorities had denied him the right to a fair and impartial hearing. He contended that the IJ had misused the country condition reports and had failed to make independent findings, as required by El Moraghy, and that the IJ's questioning on cross-examination was indicative of the unfair hearing he received. The United States filed a return to the habeas petition, arguing that the district court lacked habeas jurisdiction. According to the government, determinations of the kind Ishak sought to have reviewed in the district court could only be reviewed by the court of appeals in a timely-filed statutory petition for review. As Ishak had failed to pursue that avenue when open to him, the district court lacked jurisdiction to deal with the issues that could have been but were not presented via the review petition mechanism.

On January 23, 2004, the district court dismissed Ishak's habeas petition "for lack of subject matter jurisdiction." Ishak timely appealed to this court from the dismissal order. By order dated January 23, 2004, this court granted Ishak's emergency motion for stay of removal. We then consolidated (1) Ishak's petition for review of the BIA's denial of the motion to reconsider; and (2) his appeal from the district court's dismissal of the habeas petition.

The above matters were briefed and argued to us. Before we could render a decision, however, the President signed into law the Real ID Act, Pub.L. No. 109-13, 119 Stat. 231. This legislation largely mooted the parties' original arguments concerning whether the district court had habeas jurisdiction to resolve the due process claims Ishak put to that court. The Real ID Act provides unequivocally that a petition for direct review in the court of appeals shall be the exclusive means for judicial review of an order of removal, and that cases pending in the district court on the date of enactment challenging a final deportation order shall be transferred, in the form of petitions for review, to the courts of appeals. Real ID Act § 106, Pub.L. No. 109-13, 119 Stat. at 310-11. Cases so transferred are not subject to the thirty-day filing deadline in section 242(b)(1) of the Immigration and Nationality Act (INA). Id. § 106(c), 119 Stat. at 311; see infra.

Because of the Real ID Act's relevance, we invited and received supplemental briefing from the parties on its impact upon their contentions. With the benefit of this additional briefing, we now address, in their altered form, the issues before us.

II. Jurisdiction of the District Court
A. Under Prior Law

Prior to enactment of the Real ID Act, the courts of appeals were divided over whether the district courts possessed habeas jurisdiction to consider constitutional challenges to deportation orders that so-called non-criminal aliens2 could but did not raise by means of direct petitions for review filed in the courts of appeals.3 Our circuit had left open whether, in a case like Ishak's, habeas review was an alternative to a timely-filed petition for review in the court of appeals. See Seale v. INS, 323 F.3d 150, 153 (1st Cir.2003).

In its original argument made to us prior to enactment of the Real ID Act, the government contended that, under then-existing law, Ishak lacked the right to challenge his deportation by habeas corpus. It argued that the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), ...

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